Reilly v. City of Atlantic City

• Decision Date: 01 July 2008
• Docket Number: No. 06-2734.,No. 06-2591.,06-2591.,06-2734.
• Citation: 532 F.3d 216
• Parties: Robert REILLY v. CITY OF ATLANTIC CITY; Robert Flipping; Joseph B. McCullough; Arthur Snellbaker. Robert Flipping, Appellant. Robert Reilly v. City of Atlantic City; Robert Flipping; Joseph B. McCullough; Arthur Snellbaker. Arthur Snellbaker, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

532 F.3d 216

Robert REILLY v. CITY OF ATLANTIC CITY; Robert Flipping; Joseph B. McCullough; Arthur Snellbaker.

Robert Flipping, Appellant.

Robert Reilly v. City of Atlantic City; Robert Flipping; Joseph B. McCullough; Arthur Snellbaker.

Arthur Snellbaker, Appellant.

No. 06-2591.

No. 06-2734.

United States Court of Appeals, Third Circuit.

Argued April 15, 2008.

Filed: July 1, 2008.

A. Michael Barker, Joseph M. Scott, (Argued), Barker, Scott & Gelfand, Linwood, NJ, Eric J. Riso, (Argued), Marrazzo & Platt Stratford, NJ, Attorneys for Appellants.

Frank L. Corrado, (Argued), Barry, Corrado, Grassi & Gibson, Wildwood, NJ, Attorney for Appellee.

Before SLOVITER, JORDAN and ALARCÓN^*, Circuit Judges.

OPINION OF THE COURT

SLOVITER, Circuit Judge.

The issue before us is whether we have jurisdiction from the order of the District Court denying Defendants'/Appellants' claim of qualified immunity.

I.

Appellee Robert Reilly, a former Atlantic City police officer, filed suit against Robert Flipping, the Director of Public Safety, and Arthur Snellbaker, the Chief of Police, claiming that they retaliated against him for his participation, including trial testimony, in an investigation conducted jointly by state and local police a decade earlier. The claimed retaliation consisted of the formal recommendation by Flipping and Snellbaker that Reilly be demoted from his position as sergeant and be suspended for ninety days notwithstanding the recommendation of an independent hearing officer, following an extensive investigation, that Reilly serve a four-day suspension for violating police department regulations. Reilly, who accepted Flipping's offer that he retire as a sergeant instead of being disciplined, then filed this suit claiming that Appellants' actions violated his First Amendment free speech rights and his Fourteenth Amendment right to procedural due process.

The District Court partially denied Appellants' motions for summary judgment. In the procedural posture of this appeal, we cannot decide the merits of Reilly's retaliation claim or of the various defenses thereto put forward by Appellants because we are limited to issues of law underlying the qualified immunity claims. Nonetheless, in deciding the jurisdiction issue, we must necessarily consider Appellants' contention that the District Court erred in holding Reilly's trial testimony was protected by the First Amendment and erred in holding Reilly's allegedly forced retirement gives rise to a claim for the violation of his Fourteenth Amendment right to procedural due process, because these are issues of law underlying Appellants' qualified immunity claims.

II.

Reilly was an Atlantic City police officer from 1978 until his resignation on June 1, 2003. Flipping, an Atlantic City police officer, was the Director of Public Safety for Atlantic City at the time of Reilly's resignation. Snellbaker, also an Atlantic City police officer, was the Chief of the Atlantic City Police Department at the time that Reilly resigned.

In the late 1980s and early 1990s, while Reilly was a member of the vice and intelligence units, he had a role in several investigations that targeted Flipping or individuals close to him.¹ The highly publicized investigation of corruption in the Atlantic City Police Department focused on Dennis Munoz, Flipping's friend and colleague. The Munoz investigation was conducted by the state police with the assistance of personnel in the Atlantic City Police Department. One of Reilly's informants, a prostitute named Lori Ann Jones who alleged that Munoz acted as her pimp, provided the basis of the state's case against Munoz. Reilly was called to testify as a witness for the prosecution in the resulting trial. Flipping, who was one of Munoz's supervisors in the vice section, was also a suspect in the investigation but was never charged. Flipping assisted Munoz's defense by providing Munoz's lawyer with information about witnesses against Munoz; he also testified for Munoz at the trial. Flipping was aware that Reilly was involved in the Munoz case and may have heard Reilly's testimony at the trial.

Reilly alleges Snellbaker's animus toward him stems from Snellbaker's dislike of James DiNoto, a former Chief of the Atlantic City Police Department, who was Reilly's mentor in the department. There is some evidence that DiNoto was also involved in the Munoz investigation. Flipping and Snellbaker had contentious relationships with DiNoto. In 1998, they were plaintiffs in a lawsuit alleging retaliation and due process claims against DiNoto, in part based on Flipping's testimony at the Munoz trial. See McCullough v. City of Atlantic City, 137 F.Supp.2d 557, 561, 563 (D.N.J.2001). Reilly asserts that after DiNoto was named Chief of Police, Snellbaker, who had authority over Reilly, began demeaning him in front of other officers. In their depositions, other Atlantic City police officers testified that both Snellbaker and Flipping harbored animosity toward Reilly and refused to promote him. One officer asserted that Flipping was angry with Reilly about his role in the Munoz matter and that Flipping's promotion to Director of Public Safety gave him "his first true opportunity to get even" with Reilly. Flipping App. at 281.

In November 2000, Reilly was charged with engaging in inappropriate conduct toward a subordinate, Officer Kelly Buzby, creating a hostile work environment, making untruthful statements to Internal Affairs, and improperly contacting witnesses. The matter was referred to an independent hearing officer, Willis Flower, a local attorney. Flower held a hearing at which at least twelve persons testified. In a twenty-eight page opinion dated February 14, 2003, Flower made numerous findings of fact and conclusions of law. He dismissed the charges that Reilly had made untruthful statements and improperly contacted witnesses, but found that Reilly had "engaged in conduct which derided and belittled [Buzby] and made offensive, derogatory and sexually explicit comments toward women while in the presence of [Buzby] and other subordinate officers" in violation of the police department's rules and regulations. Flipping App. at 215. Nonetheless, Flower found that "the objective facts of th[e] case, taken in a vacuum, do not present a fair picture of what actually occurred. In short, the surrounding circumstances go a long way to explain and mitigate the literal violations." Flipping App. at 241. Thus, he concluded that "dismissal, reduction in rank or lengthy suspension is not called for here." Flipping App. at 241. Instead, he recommended "a four day suspension without pay" as discipline. Flipping App. at 241.

There is evidence that Snellbaker was displeased that Flower had made a disciplinary recommendation, apparently because he believed that exceeded Flower's role. In a letter to Flipping dated February 24, 2003, Snellbaker emphasized the violations of which Reilly had been found guilty. Significantly, he did not discuss the charges that Flower had dismissed, Flower's disciplinary recommendation, or Flower's explanation of the mitigating circumstances and context of Reilly's behavior. He also did not view Reilly's disciplinary history before making his recommendation. Snellbaker concluded that he could "not overlook the egregious and reprehensible conduct of a superior towards the most impressionable of his subordinates," Flipping App. at 243, and thus he recommended a reduction in rank.

Flipping asserts that he waited for Snellbaker's recommendation before reading the recommendation in the Flower report. After receiving Snellbaker's recommendation, Flipping had the assistant personnel director obtain a copy of what purported to be Reilly's disciplinary history from the City personnel office on February 26, 2003. The City's personnel director testified that the document Flipping relied upon did not look like something prepared by her office. The document Flipping obtained contained substantial inaccuracies, such as the inclusion of a thirty-day suspension which had been rescinded and which nearly tripled the number of days Reilly had actually been suspended. Flipping asserts that he did not know the document was inaccurate at the time he prepared his recommendation.

On March 7, 2003, Flipping sent two letters to the City's Business Administrator. One recommended that Reilly be removed from the promotion list; the other recommended that he be suspended for ninety days and demoted from sergeant to patrolman. In his letters, Flipping referred to the violations which Flower found Reilly had committed but Flipping omitted mention of the charges against Reilly that Flower had dismissed. One letter stated that Reilly had "exhibited behavior throughout his career that indicates racism, bigotry, sexism, lack of impartiality toward the public, irresponsibility, bringing the department into disrepute, failures to perform lawful duties from competent authority as directed and failures to treat others with respect." Flipping App. at 248. Many of these characterizations appear to have been exaggerated. The only evidence of racism in Reilly's record (which consists of Reilly's unarguably inaccurate disciplinary history) was an allegation from 1979 that Reilly had made remarks of a racial nature.

Although Reilly had not been disciplined or charged with any violations from 1985 until the Buzby incident in 2000, Flipping's letter asserted that this "seeming `hiatus' during the middle of his career should not mislead anyone into believing that this is a history of unrelated or isolated incidents or that Reilly's behavior has changed or improved. ... For reasons unknown (perhaps related to previous administrations' lapse or malaise) no appropriate action was taken against Reilly's insidious behavior."² Flipping App. at 248. Flipping did not mention that Reilly's most recent performance evaluation (August 2002) contained his supervisor's highest possible evaluation for...